Filed 8/28/01
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
STEPHEN CRAIG NICOLOPULOS,
Plaintiff and Appellant,
B144311
(Super. Ct. No. BS061535)
v.
CITY OF LAWNDALE et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Dzintra Janavs, Judge. Reversed with directions.
Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser, and
Harrison M. Pollak for Plaintiff and Appellant.
Burke, Williams & Sorensen, William W. Wynder, and Anthony R. Taylor
for Defendants and Respondents.
INTRODUCTION
Plaintiff and appellant Stephen Craig Nicolopulos appeals from a judgment
of dismissal following the sustaining of a demurrer without leave to amend to his
first amended complaint against the City of Lawndale, the Lawndale City Council,
and individual members of the Lawndale City Council.
Appellant was the elected city clerk of Lawndale. In February 2000, the
City Council by resolution declared the office was vacated on the ground appellant
was not a resident of Lawndale (Gov. Code, § 36502), appointed Assistant City
Clerk Pamela Giamario as acting city clerk pending appointment or election of a
new city clerk to fill the vacancy, and set a special election for November 2000 to
fill the vacancy for appellant’s unexpired term (Gov. Code, § 36512).
Appellant filed his first amended complaint in March 2000, asserting five
causes of action against the City of Lawndale, the City Council, and individual
members of the City Council. The asserted causes of action were: (1) writ of
mandate pursuant to Code of Civil Procedure section 1085, (2) writ of
administrative mandate pursuant to Code of Civil Procedure section 1094.5,
(3) injunction, (4) injunction and monetary and punitive damages for violation of
federal civil rights, and (5) declaratory relief. Appellant sought the following
relief: issuance of a writ of mandate and preliminary and permanent injunctions
commanding the City Council to rescind its resolutions and “restore [appellant to]
the use and enjoyment of the office of Lawndale City Clerk, together with all of
the duties, privileges, and benefits thereof”; an injunction against holding a special
municipal election in November 2000 to fill the unexpired term; declaratory relief
“that [appellant] at all relevant times was and is domiciled in the City of
Lawndale, that no vacancy exists in the office of the Lawndale City Clerk, and that
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[appellant] remains entitled to the continued use and enjoyment of that office”;
and monetary and punitive damages for violation of federal civil rights.
Respondents demurred on the sole ground that appellant’s exclusive remedy
is an action in quo warranto. The trial court agreed. In June 2000, it sustained the
demurrer without leave to amend on the ground appellant’s exclusive remedy is
quo warranto, and dismissed the action. Appellant timely appealed from the
judgment of dismissal.
While this appeal was pending, we granted respondents’ request to
judicially notice that in the special municipal election held on November 7, 2000,
Paula Hartwill was elected as city clerk of Lawndale for the remaining term of
office ending April 23, 2002, and Hartwill took her oath of office on December 5,
2000.
Appellant contends on appeal that at the time appellant filed the complaint
and the trial court adjudicated the demurrer, quo warranto was not appellant’s
remedy, because the office was not yet filled by a new incumbent. Even assuming
this contention is correct, the office has now been filled by a new incumbent;
appellant’s exclusive remedy now is quo warranto, which he may yet pursue.
DISCUSSION
Quo warranto is the specific action by which one challenges “any person
who usurps, intrudes into, or unlawfully holds or exercises any public office.”
(Code Civ. Proc., § 803.) It is the exclusive remedy in cases where it is available.
(Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 633.) Title to an office cannot be
tried by mandamus, injunction, writ of certiorari, or petition for declaratory relief.
(People v. Olds (1853) 3 Cal. 167, 175, 177; Cal. Atty. Gen. Opinion Unit, Quo
Warranto Applications, third page, hereafter cited as Quo Warranto Applications.)
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Where, as here, a former officeholder has been ousted by a declaration the
office is vacant due to his nonresidency, and a successor has been appointed or
elected to fill the vacant term, quo warranto is the ousted official’s sole remedy for
challenging the alleged vacancy. (Klose v. Superior Court (1950) 96 Cal.App.2d
913, 917, 918, 919.) The Attorney General has repeatedly concluded, in formal
opinions, that in these situations the former officeholder’s remedy is quo warranto,
for which the Attorney General will grant leave to sue. (73 Ops.Cal.Atty.Gen. 197
(1990); 79 Ops.Cal.Atty.Gen. 21 (1996); 82 Ops.Cal.Atty.Gen. 78 (1999).) It is in
the quo warranto proceeding that the former officeholder has “‘his day in court
before it can be conclusively adjudged against him that the office was vacant at the
time the appointment was made.’” (Klose v. Superior Court, supra, 96
Cal.App.2d at p. 918.) The current incumbent must be a party to the quo warranto
proceeding, with the right to be heard. (Id. at p. 925.) If the former officeholder
succeeds in quo warranto, ousting the current incumbent, he may be restored to
office and may recover “the damages which he may have sustained by reason of
the usurpation of the office by the defendant.” (Code Civ. Proc., §§ 806, 807.)
Appellant contends quo warranto does not apply to this case, because at the
time of the trial court proceedings, Paula Hartwill had not yet been elected to fill
the alleged vacancy, and Pamela Giamario was merely an acting city clerk until
the vacancy was filled by either appointment or special election. Appellant’s
argument is that quo warranto did not lie against an acting officeholder as
distinguished from a person who claims legal title to the office by having been
appointed or elected to fill the vacancy. Respondents reply that Code of Civil
Procedure section 803 extends broadly not only to a person who “usurps, intrudes
into, or unlawfully holds” a public office but also to a person who “exercises” a
public office.
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We need not resolve this technical argument. Even assuming for discussion
that quo warranto did not then apply to the acting city clerk, we have judicially
noticed that now there is a de facto incumbent of the office and term to which
appellant desires to be restored. There is no point in reversing and requiring the
trial court to entertain mandamus, when quo warranto is now appellant’s exclusive
remedy. An appeal is moot when as a result of changed circumstances the trial
court on remand would be unable to grant the relief sought by the appellant.
(Long v. Hultberg (1972) 27 Cal.App.3d 606, 608-609 [plaintiff sought to enjoin
recall election; election was held and the voters recalled plaintiff from office;
appeal from denial of preliminary injunction and mandate dismissed as moot;
court should “decide only actual controversies by a judgment which can be carried
into effect”]; Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128, 132 [action to
enjoin recall election; election had been held and official had been recalled; appeal
dismissed as moot; “when the event which it was sought to enjoin, that is, the
election, had taken place, the remedies of the plaintiffs were removed from the
field of injunctive relief and were relegated to such remedies, if any, as they might
have and avail themselves of subsequent to the election”].) Similarly here,
appellant must be relegated now to his sole remedy, quo warranto, existing after
the filling of the vacancy in the office and term to which appellant desires to be
restored.1
1
Pulskamp v. Martinez (1992) 2 Cal.App.4th 854, cited by appellant, is
distinguishable. There the plaintiffs had sought by mandamus to prevent placing a charter
amendment on the ballot. Quo warranto to attack enacted legislation would have been
premature at that point. The Court of Appeal declined to hold the matter mooted by the
voters’ adoption of the amendment, because the court considered the voters’ action a
nullity, holding that the voters could not legally ratify a defective ballot measure. (Id. at
pp. 860-861.)
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Appellant suggests the trial court should be required to address his cause of
action for declaratory relief, with a view toward a declaration that appellant has
always been domiciled in Lawndale and there was no vacancy in his office, even
though such a declaration could not be “enforced” without a quo warranto action.
We believe this would be an idle act that the law does not require. (Civ. Code,
§ 3532.) “[T]he declaratory judgment law was not designed to undermine the
policy of the quo warranto statute.” (Cooper v. Leslie Salt Co., supra, 70 Cal.2d
627, 634.)2
Appellant also contends the trial court should be required to consider
appellant’s cause of action for violation of federal civil rights. (42 U.S.C.
§ 1983.)3 He contends that to require appellant to follow the quo warranto
procedure amounts to requiring that he “exhaust state remedies.” He cites case
law that a plaintiff may seek relief under the federal Civil Rights Act without
exhausting state remedies. (E.g., Brosterhous v. State Bar (1995) 12 Cal.4th 315,
336 [plaintiff contending imposition of mandatory dues violated plaintiff’s First
Amendment substantive rights is not required to arbitrate]; Williams v. Horvath
(1976) 16 Cal.3d 834, 842 [plaintiff contending police officers assaulted and
imprisoned plaintiff without reasonable cause is not required to comply with
governmental tort claim procedure].)
2
Appellant misplaces reliance on Fenton v. Board of Directors (1984) 156
Cal.App.3d 1107, a declaratory relief action. There, no issue was raised about quo
warranto; the board had not yet filled the vacancy; and the board acquiesced in litigating
the issue of the plaintiff’s residency. (Id. at p. 1111.)
3
On the merits, it is doubtful that appellant had a property interest in his elective
office that is protected by the federal Constitution against deprivation without due
process. (Taylor v. Beckham (1900) 178 U.S. 548, 576; Snowden v. Hughes (1944) 321
U.S. 1, 7; Rabkin v. Dean (N.D.Cal. 1994) 856 F.Supp. 543, 549.) But we need not
decide the merits.
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Appellant’s argument that he is excused from using the state remedy of quo
warranto if he sues under the federal Civil Rights Act is misconceived.
Appellant’s complaint alleges the City Council deprived him of his office without
federal procedural due process. But there is no violation of due process, and
hence no federal constitutional violation, if the postdeprivation remedies under
state law themselves provide redress in a manner that satisfies due process. The
no-exhaustion doctrine on which appellant relies is beside the point. (Parratt v.
Taylor (1981) 451 U.S. 527, 537, 538, 543-544; Brosterhous v. State Bar, supra,
12 Cal.4th 315, 326, fn. 6.) The state quo warranto procedure here provides
redress for the alleged deprivation. Upon successful trial of the quo warranto
action, the applicant is restored to office and entitled to damages sustained by
reason of the usurpation. (Code Civ. Proc., §§ 806, 807.)
Appellant suggests the quo warranto procedure does not satisfy due process
because it requires the consent of the Attorney General to proceed. Quo warranto
may be brought by the Attorney General “upon his own information, or upon a
complaint of a private party.” (Code Civ. Proc., § 803.) The prominent role of the
Attorney General has its origins deep in British history for reasons largely
irrelevant today. (International Assn. of Fire Fighters v. City of Oakland (1985)
174 Cal.App.3d 687, 695.) The modern rationale is, “The remedy of quo warranto
is vested in the People, and not in any private individual or group, because
disputes over title to public office are viewed as a public question of governmental
legitimacy and not merely a private quarrel among rival claimants. . . . [¶] . . . [¶]
Although the Attorney General occasionally brings a quo warranto action on the
initiative of that office, or at the direction of the Governor, usually the action is
filed and prosecuted by a private party who has obtained the consent of the
Attorney General, for ‘leave to sue in quo warranto.’ The private party who
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obtains leave to sue is termed the ‘relator.’ The action is brought in the name of
the People of the State of California ‘on the relation of’ the private party who has
been granted permission to bring the action.” (Cal. Atty. Gen. Opinion Unit, Quo
Warranto Applications, supra, second page; People v. City of Huntington Beach
(1954) 128 Cal.App.2d 452, 455; Oakland Municipal Improvement League v. City
of Oakland (1972) 23 Cal.App.3d 165, 170.) Requiring leave of the Attorney
General also “protects public officers from frivolous lawsuits.” (Cal. Atty. Gen.
Opinion Unit, Quo Warranto Applications, supra, first page.) The Attorney
General has an established procedure, embodied in regulations, for approving
applications by private parties for leave to sue in quo warranto. (Cal. Code Regs.,
tit. 11, §§ 1-11; People v. City of Huntington Beach, supra, 128 Cal.App.2d 452,
456.)
As noted ante, the Attorney General has granted leave to sue in quo
warranto in at least three similar cases, where the applicant was ousted from public
office by an allegedly erroneous declaration the office was vacated due to his
nonresidency, and a new incumbent had filled the alleged vacancy. (73
Ops.Cal.Atty.Gen. 197, supra; 79 Ops.Cal.Atty.Gen. 21, supra; 82
Ops.Cal.Atty.Gen. 78, supra.) We have no reason to suppose that the Attorney
General would deny an application by appellant for leave to sue in quo warranto.
(International Assn. of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d
687, 698.) And if the circumstances were such that the Attorney General abused
his discretion by denying leave, appellant would have a remedy by mandamus
against the Attorney General. (Id. at pp. 697-698.) The quo warranto procedure
satisfies constitutional due process for remedying any claimed procedural
irregularities leading to the City Council’s declaration of a vacancy in appellant’s
office. (Parratt v. Taylor, supra, 451 U.S. 527, 543-544.) Appellant is wrong,
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therefore, in asserting that by couching one cause of action under the federal Civil
Rights Act he can ignore the quo warranto procedure.
CONCLUSION
As a result of changed circumstances that occurred while the appeal was
pending and that were beyond appellant’s control, it is clear appellant’s remedy
now is quo warranto. Upon obtaining the consent of the Attorney General,
appellant could still proceed in quo warranto. If we dismissed the appeal as moot,
it would have the effect of affirming the dismissal of appellant’s lawsuit and
terminating it. We find it more appropriate to reverse and remand to give
appellant an opportunity to amend his complaint in the present lawsuit to plead a
cause of action in quo warranto if appellant obtains the consent of the Attorney
General. (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222
Cal.App.3d 1371, 1387-1388, 1405 [plaintiff-appellant can demonstrate on appeal
from order sustaining demurrer without leave to amend, that there is a reasonable
probability the pleading can be amended to state a good cause of action].) We
leave to the trial court in its discretion to determine a reasonable time within
which appellant must obtain the consent of the Attorney General and amend his
complaint to sue in quo warranto, or face dismissal of his action.
DISPOSITION
The order of dismissal is reversed for further proceedings consistent with
this opinion. The parties shall bear their own costs on appeal.
CERTIFIED FOR PUBLICATION
VOGEL (C.S.), P.J.
We concur:
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EPSTEIN, J.
HASTINGS, J.
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